Kolnacki v. State

Martoche and Hayes, JJ. (dissenting).

We respectfully dissent. In our view, the Court of Claims properly granted defendant’s motion to dismiss the claim based on claimant’s failure to set forth the requisite “total sum claimed” in accordance with Court of Claims Act § 11 (b). As noted by the majority, “[b]ecause suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed” (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; see Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]). The majority, however, does not strictly construe the statute and instead suggests either that only substantial compliance with the statute is required or that the statutory requirements can be ignored depending on the facts of the case. While we of course recognize that the facts of Lepkowski are distinguishable from this case, we cannot agree that the Court of Appeals intended a different result for personal injury cases such as this (see generally id. at 207 n 3). As in Lepkowski, claimant here was “required, at the very least, to specify . . . the total sum of damages sought” (id. at 208-209). Claimant’s undisputed failure to comply with Court of Claims Act § 11 (b) renders the claim “jurisdictionally defective for nonconformity with [the statute’s] substantive pleading requirements” (Lepkowski, 1 NY3d at 209). Present—Pigott, Jr., P.J., Hurlbutt, Gorski, Martoche and Hayes, JJ. [See 10 Misc 3d 781 (2005).]